ABSTRACT: Patentees sometimes use fraudulently procured patents to secure illegal
monopolies, excluding efficient competitors and raising prices to
consumers. While antitrust doctrine condemns the acquisition of
monopoly power through fraudulently procured patents, antitrust
liability hinges on whether the monopolist actually "enforced" the
patent. Despite the critical importance of the definition of patent
enforcement for antitrust law, no scholarship or commentary exists that
addresses what conduct constitutes patent enforcement. Without
explanation, lower courts have narrowly defined patent enforcement to
mean either filing an infringement lawsuit or explicitly threatening to
do so. This Article explains how monopolists with fraudulently procured
patents have exploited this narrow conception of patent enforcement in
order to effectively exclude competitors without triggering antitrust
scrutiny.

This Article argues that whenever a monopolist exercises the
exclusionary power of a patent, it is in fact effectively enforcing the
patent for antitrust purposes. The Article concludes that courts must
broaden their conception of "patent enforcement" to include, depending
on context, publicly flaunting one's patent, publicly stating a general
intent to sue infringers, accusing competitors of infringement,
threatening competitors' business partners, and licensing activities.
Courts currently do not consider these actions to ever constitute
patent enforcement. As a result, the current interpretation of the
enforcement requirement for antitrust purposes renders patent fraud
cost-beneficial. Absent antitrust liability, it is rational for a
monopolist to commit fraud on the PTO, maintain the patent as an
ever-present threat, and simply not actively enforce it. These are not
incentives that either patent law or antitrust law should create.
Expanding the definition of patent enforcement will close the loophole
that currently allows firms to acquire and exercise illegal monopoly
power through the acquisition of fraudulently procured patents.